United States v. Soto-Valenzuela

MEMORANDUM ** Miguel Angel Soto-Valenzuela appeals from the 63-month sentence imposed following his conviction for illegal reentry into the United States, in violation of 8 U.S.C. § 1326 . We dismiss. By its terms, the appeal waiver encompasses the grounds of this appeal, and there is no evidence that the appeal waiver was not knowing and voluntary. See United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005). We reject Soto-Valenzuela’s contention that the government waived the appeal waiver as a defense by failing to file a motion to dismiss the appeal. Soto-Valenzuela also contends that this appeal is not barred because the district court made a statement at sentencing suggesting a limited right to appeal on the particular issue of the sentencing enhancement. However, a district court’s oral statements regarding appellate rights can overcome a written appeal waiver only when made contemporaneously with the defendant’s plea. See United States v. Lopez-Armenta, 400 F.3d 1173, 1177 (9th Cir.2005). In this case, the district court’s statements at sentencing were made nearly five months after Soto-Valenzuela had entered his guilty plea, and therefore cannot serve as a basis to override an otherwise valid appeal waiver. See id. We dismiss in light of the valid appeal waiver. See Jeronimo, 398 F.3d at 1153 . DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.